US affirmative action ban challenged

2012-02-14 10:01

San Francisco - Backers of affirmative action asked a federal appeals court on Monday to overturn California's 15-year-old ban on considering race in public college admissions, citing a steep drop in black, Latino and Native American students at the state's elite campuses.

A three-judge panel of the US 9th Circuit Court of Appeal heard arguments in the latest legal challenge to Proposition 209, the landmark voter initiative that barred racial, ethnic and gender preferences in public education, employment and contracting.

The affirmative action ban has withstood multiple challenges since voters approved it in 1996, but advocates say their campaign to overturn it has been bolstered by recent court decisions, as well as support from Governor Jerry Brown.

Dozens of minority students backing the plaintiffs filled the courtroom for the hour-long hearing, when the justices questioned whether they should tamper with a 1997 ruling in which the same appellate court upheld Proposition 209.

Attorneys for the plaintiffs said affirmative action is needed to increase racial diversity at the University of California's most prestigious campuses and professional schools.

Data shows that UC's efforts to enroll diverse student populations without considering race have failed, they argued.


"What you see before you is a new form of separate and unequal going on right before our eyes," plaintiffs' attorney George Washington told the three male justices.

Ralph Kasarda, who is defending Proposition 209, told the justices that the San Francisco-based appellate court was correct when it upheld the affirmative-action ban. He called the current challenge "redundant and baseless".

"Proposition 209 guarantees everyone's right to be treated fairly and not be discriminated against based on skin colour or gender," said Kasarda, an attorney for the Pacific Legal Foundation, which represented the sponsors of the 1996 ballot measure.

The complaint was filed in January 2010 by several dozen minority students and advocacy groups who say the ban violates the civil rights of black, Latino and Native American students.

Those groups make up about half of California's high school graduates, but much smaller percentages at UC's most competitive campuses.

For example, at UC Berkeley, the current freshmen class of California residents is roughly 1% Native American, 3.5% black, 15% Latino, 30% white and 48% Asian, according to UC data.

Campus diversity

"As a state-serving institution, the university should reflect the demographics of California, and right now it doesn't," said Magali Flores, 20, a third-year Latina student majoring in ethnic studies at UC Berkeley. "Prop 209 wants to pretend that race isn't real."

The court agreed to hear the case after US District Judge Samuel Conti dismissed the lawsuit in December 2010. The California Supreme Court has twice ruled that Proposition 209 is constitutional.

Advocates say justices need to reconsider in light of recent court rulings on the issue.

In 2003, the US Supreme Court ruled the University of Michigan Law School could consider race in admissions decisions to promote campus diversity.

Last year, a three-judge panel of the US 6th Circuit Court of Appeals cited that ruling when it overturned Michigan's affirmative action ban. The full appellate court has agreed to reconsider the case.

Brown joined the plaintiffs in arguing the affirmative action ban is unconstitutional.


  • Fidel - 2012-02-14 10:19

    For example, at UC Berkeley, the current freshmen class of California residents is roughly 1% Native American, 3.5% black, 15% Latino, 30% white and 48% Asian, according to UC data. Strange that this argument is presented by the plaintiffs which shows the adverse, in that the majority of student intake is non white and Asian which I would think fall within "people of colour" as far as the Affirmative policy is concerned. But what do I know!

      Fidel - 2012-02-14 10:21

      By the way who makes up the remaining 2.5% ?

      Brett - 2012-02-14 11:24

      @Fidel albino's?

      Fidel - 2012-02-14 11:39 aching sides!

  • Glyn - 2012-02-14 10:33

    Give someone preference and it WILL DISCRIMINATE against someone else.

  • Brett - 2012-02-14 10:47

    California here I come!

  • ludlowdj - 2012-02-14 10:53

    Affirmative action doesn't work, it is simply a new form of discrimination which targets non blacks. No system anywhere should be justified in using race as an excuse to deny entry or to give preference to one race over another. The most probable cause of low black enrollment numbers is poverty and a lack of interest, the solution is to promote further learning in black communities and offer financial assistance to those that want to study but do not have the funds. South Africa is a prime example of government using so called legal profiling to give blacks an unfair advantage over the other races in the name of imagined past impediments. Well I suppose they couldn't learn as well as the whites after they burnt their schools down hey?

      Anthony - 2012-02-14 11:03

      well said, could not agree more.

      Fidel - 2012-02-14 11:44

      Unfortunately you cannot dismiss this historical fact (seperate development) because America (including SA) was born out of a racial definition and has to be advanced with that racial definition rebalanced.

      timmy.ditsele - 2012-02-14 13:00

      Ludlow i was with you until you said 'in the name of imagined past impediments.Well I suppose they couldnt learn as well as whites after they burnt their school down hey?. now my friend,can i call you a friend? it seems and sounds like you are an intelligent man,however you got you're facts wrong my friend,not all of us were burning schools.on fact when some were burning school i was one those who was burning an oil lamp studying and trying to get me and my famaly out fo poverty.From STD8 to STD10/matric we did not have a math,but guess what i was admitted to one of the best universities in the please do not generalize.I am very proud to tell you that of the pupils I was attending school with, we all are proffesionals today and not because of BEE/AA but shear dedication and hardwork.We like to build this country just like everyone who loves and lives in our beautiful south africa. to Matric without anyone's help Imagine the hardships we went through without a math teacher from STD8 to matric but in the end we made it.thats the difference between the advantaged and the the disavanteged.

  • Ronald - 2012-02-14 10:58

    The key words in this article are "competitive campuses". This means that the best students compete for the best places of learning. Do they now want to advocate the promotion of mediocrity? The playing field has been levelled for the past 15 years and some have been found wanting. Grow up and face the facts.

  • Godfrey - 2012-02-14 11:16

    If you want you country to be the best it can be then you do not accept second rate. Unless it can be shown that there is a deliberate policy to discriminate against people on any basis other than academic achievement then tough. This is special pleading and should be ignored. If you cannot compete on an equal footing then sorry for you!

      Fidel - 2012-02-14 11:47

      Equal footing in an unequal society is an oxymoron.

      Godfrey - 2012-02-14 12:05

      @Fidel So name me a society with no inequalities, anywhere. I am afraid the human condition makes us all different with different capabilities and attributes. Its unfair but then I had no say in my own 'design'. I must therefore bow to those of superior intellect or prowess and cannot demand that they be oulled down to my level. By the way, I was discriminated in this country way back in the 60's (good old Vervoedian days) because (and this is quite amusing bow) of the religious affiliation of my parents. The job went to someone less academically qualified than I was but he had the right surname and religion.

      Fidel - 2012-02-14 13:21

      The difference being that racial discrimination or inequality is systematic and pervasive.

  • reynard.j.debeer - 2012-02-14 11:31

    If you cant make it cause you dont have the determination to make it to the top, why should you be granted places just cause your as$ isnt white, or in this case asian?

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